Delhi District Court
State vs Aashu on 20 December, 2024
IN THE COURT OF SH. VINEET KUMAR:
ADDITIONAL SESSIONS JUDGE; E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No. 09/2017
FIR No. 778/2016
U/S: 307/34 IPC
& S. 25/27 Arms Act.
P.S: Nand Nagri
State Versus 1. Aashu
S/o Sh. Ram Kishan
R/o C-295, Main Road,
Telephone Exchange,
Saheed Nagar, Ghaziabad, UP.
2. Arjun Vedi
S/o Late Sh. Raj Singh
R/o H. No. 329, Dr. Ambedkar
Basti, Ghonda, Delhi.
Date of Committal to Sessions Court : 26.12.2016
Date on which Judgment reserved : 30.09.2024
Date of pronouncement of judgment : 20.12.2024
Accused Aashu represented : Ld. Counsel Mr. A.K. Dubey
by
Accused Arjun Vedi represented : Ld. Counsel Mr. V.K. Rana
by
State represented by : Addl. PP Mr. Parmod Kumar
Digitally signed
by VINEET
VINEET KUMAR
Date:
KUMAR 2024.12.20
16:14:49
+0530
____________________________________________________________________
FIR No. 778/16 State vs. Ashu Etc Page No.1/56
JUDGMENT
SUMMARY OF FACTS
1. Briefly, the case of prosecution is that on 03.09.2016 upon receiving DD no.112-B, SI Dinesh Kumar along with Ct. Pardeep reached E-2 Block Chowk, Nand Nagri, Delhi, where they found one chopper, one knife/Chhura, one pair of slippers and blood lying on the spot and they also came to know that injured had been taken to GTB Hospital. Thereupon, SI Dinesh Kumar left Ct. Pardeep at the spot for its preservation and went to GTB Hospital and collected the MLC of injured Mahesh Gupta and recorded his statement. The gist of statement is that complainant along with his family is residing at E-3/387, Nand Nagri, Delhi and runs the shop of water and namkeen at E-Block Theka; that earlier complainant along with Neetu and Subhash used to run Delhi Chicken Point where Arjun used to visit and Ashu i.e. cousin of Subhash also used to work there; that complainant had lent an amount of Rs.3/4 lacs to Subhash and Arjun; that complainant had asked his money back from Subhash, who had assured him to return his money upon coming to his shop; that on 03.09.2016 at about 9:30 pm, when Subhash, Arjun and Ashu were coming to E-2 Block from the side of shop of complainant, he called all of them and asked kitne paise lekar aaye ho, then Subhash abused him and said aaj tera hisab chukta kar dete hain; that Ashu caught hold of complainant and Subhash took out one Chopper from the back side of his pant and attacked him; that Arjun attacked the complainant with knife/ chhura and complainant tried to escape from his hands;
Digitally signed____________________________________________________________________ VINEET by VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.2/56 KUMAR Date: 2024.12.20 16:15:09 +0530 that Subhash gave multiple blows on the head of complainant with chopper, due to which blood started oozing out and he fell down and all of them fled away from there; that while fleeing from the spot, Subhash and Arjun left the chopper and knife/chhura respectively at the spot. Consequently, FIR was registered and accused persons i.e. Aashu, Subhash Chand and Arjun Vedi were arrested on 04.09.2016 at 4 pm, 09.09.2016 at 6:30 am and 24.09.2016 at 4:50 pm respectively. After completion of investigation, charge-sheet was filed by IO before the court.
2. After cognizance was taken and compliance of section 207 Cr.P.C. was done, this case was committed to Sessions Court. Charge was framed under Section 307/34 IPC r/w S. 25/27 Arms Act against the accused persons, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. In order to substantiate the charges, evidence was led by prosecution during the course of which, 20 witnesses were examined. Brief summary of the deposition of prosecution witnesses is as under:
4. PW-1 Mahesh Gupta, who is the complainant, has deposed that on 03.09.2016, upon receiving missed call from accused Subhash, he called accused Subhash back, who told the complainant to reach at the said Chicken Point to take money from him, but he refused and told him that he would take money on next day; that thereafter, he received phone from Neetu, who told him Digitally signed ____________________________________________________________________ by VINEET FIR No. 778/16 State vs. Ashu Etc VINEET KUMAR Page No.3/56 KUMAR Date:
2024.12.20 16:15:40 +0530 that accused persons were angry and there is a likelihood of quarrel between him and them; that thereafter he closed his shop before routine time and when he reached near the gate of Mandi near the shop of halwai, he saw Ashu and Subhash there; that he called Subash and Ashu and they came near him; that in the meanwhile, one of his known namely Aamir came there on a motor-cycle on which Arjun was sitting as a pillion rider and Aamir after alighting Arjun from his motor-cycle left from there after shaking hand with him; that when he asked the accused persons as to what was the hurry as they could return the money to him on the next day, the accused persons requested him to walk on a side as they wanted to talk with him; that he accompanied the accused persons to the side, where there was dark and Ashu started talking with him, but accused Subhash took out one Chopper and he made a blow of chopper on his head; that accused Subhash also gave blow of chopper on his right-side face and accused Arjun also stabbed him with knife which he was carrying knife with him, due to which, he sustained injuries on his hands, left side face and back; that accused Subhash tried to make a blow of chopper on his neck and he raised his right hand in his defence, but the chopper hit over his right hand, due to which, he fell down and raised alarm; that some public persons, who were present near the spot started pelting stones over the accused persons and thereafter, all three of them ran away while throwing their weapons; that complainant's wife was informed about the incident by one public person, when she had called on his mobile and it was told to her by the public person that the person to whom she had made a call has died, as the public person was presuming the complainant to be dead due to the Digitally signed ____________________________________________________________________ by VINEET FIR No. 778/16 State vs. Ashu Etc VINEET KUMAR Page No.4/56 KUMAR Date:
2024.12.20 16:15:50 +0530 injuries suffered by him; that complainant was shifted to GTB Hospital by some residents of his locality and his nephew Jatin Gupta made call at 100 number; that police recorded his statement i.e. Ex. PW-1/A and took his thumb impression when he was unconscious in the hospital, however, again said, as a result of injuries, since he was not in position to sign, therefore, police obtained his thumb impression; that on 09.09.2016, IO called him and upon his identification, IO apprehended and arrested accused Subhash vide arrest memo Ex. PW1/B; that IO arrested accused Arjun from his house vide arrest memo i.e. Ex.PW1/C; that accused Arjun & Subhash had borrowed Rs. 3-4 lacs from him, however, he does not have any receipt regarding money borrowed by them at present. He has correctly identified all the accused persons during the course of his examination-in-chief.
During cross-examination on behalf of accused Arjun Vedi, PW-1 has deposed that Arjun is known to him three years prior to the incident and Arjun used to come at his shop for having eatables including drinks; that after 7-8 months, Arjun met him with co-accused Subhash, who was known to him previously; that he had introduced Arjun with Subash as they both used to come at his shop; that he had not given any document regarding his partnership with Neetu in respect of Delhi Chicken Point. He has further deposed that he had paid Rs.3-4 lacs in cash to accused Subash and Arjun and he paid them in installments. He has further deposed that accused Arjun had borrowed approximately Rs.1.5 lacs while accused Subhash had borrowed around Rs.2.5 lacs from him without interest; that at one time, he paid amount to accused Arjun in the presence of his friend Salim and ArjunDigitally had returned signed ____________________________________________________________________ VINEET KUMAR by VINEET FIR No. 778/16 State vs. Ashu Etc Page No.5/56 KUMAR Date:
2024.12.20 16:16:01 +0530 some amount one or two time in between to him; that on 16.08.2016, he met with accused Arjun at Delhi Chicken Point and from 16.08.2016, till the day of incident, he had talked with accused Arjun on 17.08.2016 telephonically 2-3 times; that as far as he recollect, he did not talk with accused Arjun telephonically;
that on the day of incident, he had talked with Neetu telephonically two times within 3-4 minutes; that in first call, Neetu told him not to come at Delhi Chicken Point as there was apprehension of quarrel and in second call, he told him to leave his shop after closing the same; that he told him that accused Subhash and Arjun had consumed liquor and asked him not to come at Delhi Chicken Point; that he did not go to any other place prior to the incident from his shop; that Amir, who came alongwith accused Arjun is his friend for last 5-6 years; that at the time of incident, accused Subhash was standing behind him and accused Arjun was on his left side while accused Ashu caught hold of him from front; that accused Arjun was not owing any money regarding purchase of any food articles from shop; that although he introduced accused Arjun with Subhash but later on they became close; that he received the phone call from Neetu prior to accused person's taking him to a side; that he cannot tell the numbers of public persons, who were pelting stone upon the accused persons as he was in badly injured condition at that time. He has denied to a suggestion that he narrated the facts in his statement dt. 09.09.2016 to implicate accused Arjun or that neither he had any money transaction with accused Arjun nor he was present at the spot; or that he falsely implicated accused Arjun due to being jealous of Digitally signed closeness to accused Subash. VINEET by VINEET KUMAR KUMAR Date: 2024.12.20 ____________________________________________________________________ 16:16:12 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.6/56 During cross examination on behalf of accused Ashu, he has deposed that he had no money transaction with accused Ashu, who is son of Mausi of accused Subash and he used to work as waiter at Delhi Chicken Point; that Delhi Chicken point was in partnership between him and Neetu; that when he saw accused Ashu near the shop of Halwai, same was lying open, but he did not inform the police in his statements that the shop of Halwai was lying open; that the place of incident is a residential-cum- commercial area and in his presence, IO did not record the statement of any shopkeeper, halwai or other public person regarding the incident; that he had told the police that Ashu was talking with him at the time of incident. (Confronted with Ex.PW1/A, where it is not so recorded); that when accused Ashu was employed at Delhi Chicken Point, he was being paid Rs.250/- per day, however, there was no such record being maintained; that accused Ashu caught hold of him and did not attack on him; that he told the police that accused Ashu was working with him but he had not given his address as he was not aware of the residential address of accused Ashu; that he does not know who made call to police at 100 number. He has denied to the suggestion that he did not pay the dues of accused Ashu for the period he worked with him and as he is the cousin of accused Subhash, he falsely implicated him in the present case or that he did not give any photograph of accused Ashu to the police after the incident and accused Ashu was not arrested in his presence.
During cross examination on behalf of accused Subash, he has deposed that Subhash is known to him 3-4 years prior to the incident; that no written document was executed Digitally signed ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc VINEETby VINEET Page No.7/56 KUMAR KUMAR Date: 2024.12.20 16:16:22 +0530 regarding loan of Rs.2-2.5 lacs as given by him to accused Subhash; that he did the business in Delhi Chicken Point for about one and half months and as there was no good income, he closed the said business; that he did not file any suit for recovery against accused Subhash in respect of the amount lent to him. He has denied the suggestion w.r.t. any such incident of causing injury to him with chopper or that he falsely implicated the accuse Subhash due to monetary transactions or that he has falsely implicated the accused as he did not return his money.
5. PW2 is ASI Prithavi Singh,who deposed that in the intervening night of 03/04.09.2016, he was posted as duty officer at PS Nand Nagri and recorded the present FIR i.e. Ex.PW2/A. He further proved endorsement on rukka which is Ex. PW2/B. He deposed that after registration of FIR, he gave the copy of FIR and rukka to Ct. Pradeep for handing over the same to SI Amit Kumar. PW2 further proved the certificate u/s 65-B of Indian Evidence Act as Ex. PW2/C. During cross-examination on behalf of accused Aashu, PW2 has deposed that his signatures are not appearing on the FIR brought by him today. He has admitted that his signatures are not appearing on the rukka but his name has been mentioned.
6. PW-3 is Manoj Kumar @ Nittu. He has deposed that Subhash is his friend and he is acquainted with him for last more than 2½ years as they had met at the shop of Mahesh Kumar behind Gagan Cinema near liquor shop, Nand Nagri; that he was running a hotel in partnership with Subhash where some dispute Digitally signed by VINEET ____________________________________________________________________ VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc KUMARPage No.8/56 Date:
2024.12.20 16:16:34 +0530 and differences arose between Subhash and Mahesh and Subhash told him that Mahesh had been abusing him and therefore, he would give beating to Mahesh; that on 03.09.2016 at about 9.30 pm when he was present in his hotel with Subhash, Arjun, Ashu and Saleem, some customers were also present at that time and Subhash was abusing Mahesh on telephone; that he asked Subhash to settle the matter after talking with each other and after about 10 minutes Subhash along with Ashu left the hotel and Arjun remained with him; that he had telephonically called Mahesh Gupta and informed that he should close his shop and returned to his house as there is possibility of quarrel; that after about 10 - 15 minutes Arjun also left from there and thereafter, he does not know anything what had happened and at about 10.00 pm when he was closing his hotel, meanwhile he received information that a quarrel had taken place in the market of Nand Nagari and thereafter he returned back to his house; that later on police had met him and made enquiries from him and his statement was recorded. During the course of evidence, PW-3 has correctly identified accused Arjun, Ashu and Subhash.
During cross-examination by Ld. Addl. PP, PW-3 has admitted that his hotel /restaurant in partnership was in the name of Delhi Chicken Point, Shop No. E-8, Priyadarshani Vihar, Delhi and Subhash had kept his cousin Ashu as a labourer in the restaurant; that he had stated to the police that some dispute/differences has arisen on the issue of some money transaction; that at the time of telephonic conversation with Mahesh, accused Subhash became angry who took chicken cutter but he snatched and kept the same but he along with Ashu went away from there; that after some time Digitally signed ____________________________________________________________________ VINEET by VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.9/56 KUMAR Date: 2024.12.20 16:16:44 +0530 one Amir also came on motorcycle and Arjun had also left stating that he is going to search out Subhash and Ashu; that later on he came to know that quarrel had taken place between Mahesh and Arjun, Subhash and Ashu, but he could not recollect the above facts due to lapse of time; that he had come to know that Mahesh had sustained injuries, he was taken to hospital and was medically examined; that it came to his knowledge that FIR was registered regarding assault by the accused persons upon Mahesh and accused persons were also arrested.
During cross-examination on behalf of accused Ashu, PW-3 has deposed that there was no personal enmity between accused Ashu and injured Mahesh Kumar and when accused Subhash was abusing Mahesh on telephone, accused Ashu did not utter any abuses.
During cross-examination on behalf of accused Subhash, PW-3 has deposed that prior to this incident, he is not aware of any quarrel between Subhash and Mahesh Kumar. He has denied the suggestion that he had made call to Mahesh regarding refrigerator and not regarding informing Mahesh that quarrel may take place.
PW-3 was not cross-examined on behalf of accused Arjun despite opportunity.
7. PW-4 is SI Dinesh Kumar. He has deposed that on 03.09.2016, upon receipt of DD No.112-B regarding assault of the knife at E- 2 Block Chowk, Nand Nagari, he along with Ct. Pradeep reached at the spot where one blood stained chopper (knife), one other blood stained knife, one pair of sleeper as well as Digitally signed ____________________________________________________________________ VINEET by VINEETKUMAR FIR No. 778/16 State vs. Ashu Etc Page No.10/56 KUMAR Date: 2024.12.20 16:16:56 +0530 blood was lying at the spot and he came to know that the injured had been removed to GTB hospital; that after leaving Ct. Pradeep at the spot, he reached at GTB hospital where he collected MLC of injured Mahesh Gupta and recorded statement of injured Mahesh Gupta i.e. already Ex.PW1/A attested by him under his signature at point A; that after returning back at the spot, he had called crime team and accordingly crime team reached at the spot which had inspected the scene of crime and photographs were taken by them; that he made his endorsement i.e. Ex.PW4/A on the statement of complainant Ex.PW1/A and put his signature at point A; that thereafter, rukka was handed over to Ct. Pradeep with the direction to get the FIR registered; that thereafter, he lifted chopper and knife, prepared their sketch which are Ex.PW4/B and Ex.PW4/C respectively and he had also seized one pair of sleeper (sandal), blood stained control, earth control as well as blood which were converted into separate pullandas sealed with the seal of DK and then took the same into possession vide memo Ex.PW4/D; that Ct. Pradeep had also reached there during this process and he had also signed the seizure memo; that Ct. Pradeep had returned at the spot along with SI Amit who had been entrusted investigation of the present case; that he had deposited the case property in malkhana in safe custody and thereafter, his statement was recorded by the IO and he was discharged from the investigation. During the course of examination-in-chief, he has identified chopper, knife and one pair of sleepers as Ex. P-1, Ex. P-2 & Ex. P-3 respectively.
During cross-examination on behalf of accused Ashu, he has deposed that he had gone through DD No. 112-B regarding Digitally signed VINEET the incident of the present case entrusted to him;
by VINEET that as KUMAR per2024.12.20 DD KUMAR Date:16:17:10 +0530 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.11/56 No.112-B Ex.PW4/DA the information was regarding murder at E- 1130 Nand Nagari; that he did not contact on mobile number 9953954595 mentioned in DD No.112-B and he did not collect any information about the caller of DD No.112-B till the investigation remained with him; that in DD No.112-B, E-2 Block Chowk is not mentioned, however, he has voluntarily deposed that when he was proceeding he had found huge gathering at the aforesaid place; that when he reached at the spot there was gathering of public persons of about 30-40 in number and police persons were found guarding the spot; that the spot was surrounded with residential area, but he did not record statement of any public person as well as police persons found present, however, he had conversation with those police persons but did not record their statements; that he had left Ct. Pradeep to safeguard the spot before leaving for hospital; that he remained in the hospital for about 60-75 minutes and he had left the hospital at about 11.15/11.30 pm and returned back at the spot; that no relative of injured or PCR official met him in the hospital and the patient Mahesh was already declared fit for statement on the MLC, however, he does not remember if he had sought permission from the doctor for recording the statement of injured Mahesh; that he had returned back at the spot from hospital at about 11.40/11.45 pm and 5-7 public persons were present there, however, upon enquiry, they did not tell anything about the incident; that he cannot tell the name of the occupant of house situated near the spot and he did not call anyone from the residential houses. He has denied the suggestion that he had got registered a false case at the instance of injured Mahesh Kumar and he had never visited the scene of crime for any purpose.
Digitally signed____________________________________________________________________ by VINEET VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.12/56 KUMAR Date:2024.12.20 16:17:23 +0530 The said cross-examination was adopted on behalf of accused Arjun.
During the course of cross-examination on behalf of accused Subhash, he has deposed that public persons were present at some distance from the spot when he had seized chopper, knife and other articles from the spot; that he had asked public persons to join the proceedings but none come forward; that he himself had not taken any photograph of the scene of crime from his mobile, however, he has voluntarily stated that it was photographer of mobile crime team who had taken the photographs scene of the crime. He has denied to a suggestion that he had not investigated the case properly.
8. PW5 is Mohd. Salim. He has deposed that he is a scrap dealer by profession and he knew complainant Mahesh Gupta since last 8-10 years as he was running tea and snacks stall; that he knows all the accused persons and he has correctly identified all of them; that there was some money dispute between Mahesh Gupta and Subhash Chand and Arjun Vedi; that he does not remember the date and month but it was in the year 2016 and on that day at about 9.00 pm or 10.00 pm, all the accused persons were at the chicken shop; that he went to take milk from a shop where one Amir met him and he requested him to give some petrol for his scooty; that he had seen that owner of chicken shop namely Neetu and all the three accused were present and thereafter all three accused went to the other side of the road and he also left for his home; that at about 10:00-10:15 pm, he was telephonically informed by the wife of Mahesh Gupta that someone stabbed his husband, on receipt of Digitally signed ____________________________________________________________________ VINEET by VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.13/56 KUMAR Date:
2024.12.20 16:17:33 +0530 call, he went to the house of Mahesh Gupta and from there he along with elder brother and nephew of Mahesh Gupta went to GTB hospital; that he was interrogated by the police and his statement was recorded.
During the course of cross-examination by Ld. APP for the State, PW-5 has deposed that he cannot confirm whether the date of incident was 03.09.2016; that in case of need, Mahesh Gupta used to lend money to the accused Subhash and Arjun Vedi and once or twice, Mahesh Gupta demanded his money from the accused Subhash Chand and Arjun Vedi in his presence; that accused Arjun Vedi telephonically informed him and warned him not to go to market because Subhash and Aashu had committed incident with Mahesh Gupta. He has denied the suggestion that Mahesh Gupta was also present near the shop of chicken when accused persons were seen by him or that accused Arjun Vedi went along with Amir in search of accused Subhash and Aashu when he requested Amir to give some petrol for his scooty.
During the course of cross-examination on behalf of accused Subhash Chand, he has deposed that in his presence no written document regarding money transaction between Mahesh Gupta and accused persons was prepared. He has denied a suggestion that he is deposing at the instance of Mahesh Gupta.
During the course of cross-examination on behalf of accused Arjun Vedi, he has deposed that in his presence, Mahesh Gupta never demanded money from accused Arjun Vedi and Mahesh Gupta had not given any money in his presence to accused Arjun Vedi; that he received the call from accused Arjun Vedi regarding the incident between 9.00 pm to 10.00 pm but he cannot Digitally signed ____________________________________________________________________ VINEET by VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.14/56 KUMAR Date: 2024.12.20 16:17:43 +0530 tell the mobile number of accused Arjun Vedi; that IO had not asked about the mobile number from which call was made to him; that he went to the IO in the month of October but he does not remember the date and IO did not ask call detail from him. He has denied to a suggestion that he had not received any call from Arjun Vedi regarding the incident or that he has deposed falsely at the instance of Mahesh Gupta.
During the course of cross-examination on behalf of accused Aashu, he has denied to a suggestion that he has deposed falsely at the instance of complainant.
9. PW6 is Mohd. Amir. He has deposed that he is running a business of manufacturing goods and he knew all accused persons and he correctly identified all of them; that there was some dispute between Mahesh Gupta and accused persons on account of money transactions; that on 03.09.2016 between 9.00 pm to 10.00 pm, he visited Delhi Chicken Point which was being run by accused Subhash and Neetu and at that time, accused Arjun, Aashu, one Salim and Neetu were also present there; that after having chicken from that shop, he was going to his workplace at Nand Nagri and accused Arjun also requested him to drop him at Nand Nagri; that thereafter he along with Arjun went towards Nand Nagri on his bike and when he reached near Subzi Mandi, Nand Nagri, he saw that Mahesh Gupta @ Pale and accused Subhash Chand were talking to each other and they also stopped near them;
that in the meantime, accused Aashu also reached there and thereafter he left the spot after leaving Arjun Vedi with them and at that time, they were talking to each other; that on 01.10.2016, his Digitally signed ____________________________________________________________________ by VINEET FIR No. 778/16 State vs. Ashu Etc VINEET KUMAR Page No.15/56 KUMAR Date:
2024.12.20 16:17:53 +0530 statement was recorded by the police and on the next day, he came to know about the incident from the nephew of Mahesh Gupta.
The said witness was not cross-examined on behalf of accused Subhash Chand despite opportunity.
During the course of cross-examination on behalf of accused Arjun Vedi, he has deposed that he knows Arjun Vedi prior to one and half years of the incident; that in his presence, complainant had not given any money to accused Subash Chand or Arjun Vedi but he used to demand money from them; that he remained at Delhi Chicken Point for about half an hour on that day and during that period, he talked with Neetu, Salim and accused Arjun Vedi; that he left Delhi Chicken Point along with accused Arjun Vedi at about 9.30 pm. and he had told the police in his statement that when he reached near Subzi Mandi, Nand Nagri along with accused Arjun Vedi, in the meantime, accused Aashu also reached there. The said fact was confronted with statement Ex.PW6/DA where it was not so recorded; that no written notice was given to him by the IO to join investigation but he received a call from the IO; that there were some shops near the place where accused Subhash Chand and Mahesh Gupta were talking with each other but as such no public person was present there; that he had told to the police in his statement that he came to know from the nephew of Mahesh Gupta about the incident. He has denied a suggestion that he narrated the facts in his statement to implicate accused Arjun Vedi at the instance of complainant or that there was no money transaction between complainant and accused Arjun Vedi or that accused Arjun Vedi was not present at the spot or that he had not given lift to accused Arjun Vedi for Nand Nagri on his Digitally signed ____________________________________________________________________ by VINEET FIR No. 778/16 State vs. Ashu Etc VINEET KUMAR Page No.16/56 KUMAR Date:
2024.12.20 16:18:03 +0530 motorcycle at any point of time on the day of incident or that he is deposing falsely at the instance of Mahesh Gupta.
During the course of cross-examination on behalf of accused Aashu, he has denied the suggestion that he is deposing falsely at the instance of complainant.
10. PW-7 is Gaurav. He has deposed that he is working at Harsh Vihar Jail as housekeeper; that on 03.09.2016 at about 9:30 - 10:00 pm, when he was going on foot towards mandi side of Nand Nagri via MCD flats, he saw a fighting at mandi chowk; that he approached towards fighting place and saw three persons running, while two of them went in the direction from where he was coming and the third one in the gali on his right side; that then he reached at the place of incident and saw that one person was lying on the road in injured condition and he recognized him as uncle namely Mahesh @ Paale of his friend namely Ravinder Kumar Gupta; that he made a call to his friend Ravinder Kumar and after some time he along with his family members reached there and took the injured to hospital; that his statement was recorded by the police and he had not seen the faces of those three persons who were running from there and as such he could not identify them.
No cross-examination was conducted by any of the accused persons despite opportunity.
11. PW-8 is Jatin Gupta. He has deposed that complainant Mahesh Gupta is his real uncle; that on 03.09.2016 at about 10:00 - 10:10 pm, his father received a call that his uncle was being beaten by some persons; that as his father isDigitally of old age, signed ____________________________________________________________________ by VINEET VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.17/56 KUMAR Date:
2024.12.20 16:18:13 +0530 he went to E-2 Chowk, Nand Nagri where he saw that his uncle was lying in injured condition and blood was oozing from his injuries; that thereafter, he with the help of some public persons took his uncle Mahesh Gupta to GTB hospital; that after some time police also reached at GTB hospital and recorded his statement in the hospital.
No cross-examination was conducted by any of the accused persons despite opportunity.
12. PW-9 is Dr. Mritunjay, from General Medicine, Jipmer, Puducherry. He has deposed that on 03.09.2016, he was posted at GTB hospital in the Emergency Department as Medical Officer and on that day, he examined injured Mahesh Gupta vide MLC Ex.PW9/A; that patient was brought by one Jatin Gupta and he referred the patient to Surgery Department, Room No.149, GTB Hospital and Ortho Department.
No cross-examination was conducted by any of the accused persons despite opportunity.
13. PW-10 is Ct. Deepak. He has deposed that on 14.10.2016, MHC(M) PS Nand Nagri handed over seven exhibits/pullandas in sealed condition to him for depositing the same with FSL Rohini vide RC No.217/21/16; that he deposited aforesaid exhibits at FSL Rohini and handed over copy of receipt to MHC(M); that exhibits/pullandas were intact while they remained in his custody.
No cross-examination was conducted by any of the Digitally signed accused persons despite opportunity. VINEET by VINEET KUMAR KUMAR 16:18:23 Date: 2024.12.20 ____________________________________________________________________ +0530 FIR No. 778/16 State vs. Ashu Etc Page No.18/56
14. PW-11 is ASI Sudhir Tomar. He has deposed that on 24.09.2016 at about 4.15 pm, he along with SI Amit Kumar and complainant went to H. No.329, Dr. Ambedkar Basti, Ghonda; that accused Arjun Vedi was found in the said house and was identified by the complainant; that accused Arjun Vedi was apprehended and his custody was handed over to him by the IO; that then IO arrested accused Arjun Vedi vide arrest memo i.e. already Ex.PW1/C and his personal search was conducted vide memo Ex.PW11/A and his disclosure statement was recorded vide disclosure statement Ex.PW11/B; that thereafter, accused was sent to police lockup after his medical examination and his statement was recorded by the IO. He has correctly identified accused Arjun Vedi during his examination-in-chief.
During cross-examination by Ld. Counsel for accused Arjun Vedi, he has deposed that IO made his departure entry and personally he had not made any departure entry, however, he does not remember the DD number by which IO had made the departure entry; that complainant accompanied them from the police station for conducting raid at the house of accused Arjun Vedi and after about 4-5 minutes of reaching the complainant in police station, they left for the house of the accused Arjun Vedi; that they went to the house of accused Arjun Vedi on private vehicle but he does not remember whether it was car, tempo, gypsy or any other vehicle; that at that time, brother of the accused as well as some ladies were also found present; that they remained for about 20 - 25 minutes at the house of accused and IO made enquiries from accused at his house and writing work was also done at the house of accused; that Digitally signed ____________________________________________________________________ by VINEET VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.19/56 KUMAR Date:
2024.12.20 16:18:35 +0530 accused was in his custody when he was getting interrogated by the IO. He has denied to the suggestions that complainant did not accompany them to the house of accused or that accused was called in the police station or that present case is a false case and his statement was not written by the IO in his presence or that he did not join the investigation at any point of time or that I am deposing falsely at the instance of IO.
He was not cross-examined on behalf of accused persons i.e. Subhash and Aashu despite opportunity.
15. PW-12 is Saurabh Pathak, Junior Forensic/Chemical Examiner (Biology), FSL, Rohini. He has deposed that on 14.10.2016, seven sealed parcels with sample seal were deposited in FSL Rohini and same were marked to him for examination; that he tallied the parcels with sample seal and found the same intact;
his detailed report of analysis is Ex.PW12/A and his serological report is Ex.PW12/B, both bearing his signatures at point A respectively; that after examining, the remnants were sealed with the seal of SP FSL DELHI and sent to forwarding authority.
PW-12 was not cross-examined by any accused person despite opportunity.
16. PW-13 is Ct. Pushkar and he has deposed that on 04.09.2016 at about 9.30 am, he along with SI Amit Kumar went to red light, Dilshad Colony where one secret informer met SI Amit Kumar and at his pointing out accused Aashu was arrested vide memo Ex.PW13/A and his personal search was also conducted vide memo Ex.PW13/B; that IO also recorded disclosure statement Digitally signed ____________________________________________________________________ VINEET by VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.20/56 KUMAR Date: 2024.12.20 16:18:44 +0530 of accused Aashu i.e. Ex.PW13/C and thereafter, accused Aashu was put into lockup after getting him medically examined from GTB hospital; that accused Aashu was produced before the court and his police custody remand for one day was obtained; that they also tried to search co-accused Subhash and Arjun but could not succeed. PW-13 has correctly identified accused Aashu during his examination-in-chief.
The said witness was not cross-examined on behalf of accused Subhash and Arjun Vedi despite opportunity.
During the course of cross-examination on behalf of accused Aashu, PW-13 has deposed that 10-20 public persons were present at the red light chowk of Dilshad Colony and he was called by the IO telephonically; that accused Aashu was arrested from red light, Dilshad Colony and not from Nand Nagri; that he put his signature on the arrest memo after going through the contents of the arrest memo; that IO did not ask any public person or any traffic police official to join the investigation and he is not aware whether IO made departure entry as well as arrival entry; that he cannot tell the time for which they remained present at the place of arrest of accused Aashu; that accused Aashu pointed out some places regarding the presence of co-accused but no pointing out memo was prepared; that secret informer was already present at red light chowk Dilshad Colony when they reached there. He has denied the suggestion that he did not join the investigation at any point of time or that he put his signatures on the memos at the instance of IO. Digitally signed by VINEET VINEET KUMAR KUMAR Date:
2024.12.20 16:18:55 +0530 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.21/56
17. PW-14 is HC Kishan Pal. He has deposed that on 04.09.2016 he was posted as MHC(M) at PS Nand Nagari and on that day SI Dinesh Kumar deposited three sealed cloth pullanda, three sealed plastic Dibbi (containers) with the seal of DK vide entry no. 5000 i.e. Ex. PW14/A(OSR); that on 24.09.2016 SI Amit Kumar deposited one sealed pullanda duly sealed with the seal of GTB hospital vide entry no. 5040 i.e. Ex. PW14/B(OSR); that on 14.10.2016, he handed over seven pullandas to Ct. Deepak for depositing the same at FSL Rohini for their inspection vide RC no.
217/21/2016 i.e. Ex. PW14/C (OSR); that after depositing the same, Ct. Deepak handed over him the acknowledgment of acceptance of FSL Rohini vide PW14/D(OSR); that on 11.01.2017 Ct. Pushkar was sent to FSL Rohini for taking the result from there and he accordingly brought the same along with seven sealed parcel and one sealed report of FSL Rohini; that he also made entry in this regard in Ex. PW14/A from point X to X1 bears his signature at point A. During the course of cross-examination on behalf of accused Arjun Vedi, PW-14 has admitted that in his statement recorded U/s 161 Cr.P.C. he has not stated regarding depositing of sealed pullandas on 04.09.2016.
During the course of cross-examination on behalf of accused Subhash and Aashu, PW-14 has admitted that the signature of SI Dinesh Kumar and SI Amit Kumar are not appearing on the register no. 19; that in his statement the name of Ct. Pradeep is written as the Constable who took the sealed pullanda to FSL, however, it has been voluntarily said by the witness that it is due to Digitally signed typographical error. VINEET by VINEET KUMAR KUMAR 16:19:05 Date: 2024.12.20 ____________________________________________________________________ +0530 FIR No. 778/16 State vs. Ashu Etc Page No.22/56
18. PW-15 is Ct. Pradeep Sharma. He has deposed that on 03.09.2016, he was on emergency duty along with SI Dinesh Kumar from 08.00 p.m. to 08.00 a.m and at about 10-10.30 p.m. after receiving the PCR call which was recorded as DD no. 112B, he along with SI Dinesh Kumar went to E-2 block, Chowk Nand Nagari there they found blood, one chopper, one knife and one pair of chappal lying on the ground; that they came to know that injured was taken to GTB hospital and thereafter SI Dinesh after leaving him to guard the spot went to GTB hospital; that crime team reached at the spot in the meantime and SI Dinesh Kumar also returned to the spot; that crime team took photographs at the instance of SI Dinesh Kumar, IO lifted blood in gauze, blood stained earth, earth control and put the same in separate small plastic containers and sealed the same with the seal of DK; that IO also took the chopper, one knife and pair of chappal and put the same in separate cloth pullanda and sealed the same with the seal of DK and took all the aforesaid exhibits in police possession vide seizure memo already Ex. PW4/D; that SI Dinesh Kumar handed over him the tehrir with direction to get the FIR registered and accordingly, he went to PS Nand Nagari and gave the same to duty officer for registration of FIR; that after registration of FIR, investigation was assigned to SI Amit Kumar and thereupon he along with SI Amit Kumar reached at the spot; that SI Amit Kumar prepared rough site plan of the spot at the instance of SI Dinesh Kumar i.e. Ex PW15/A and SI Dinesh Kumar handed over all the sealed exhibits to SI Amit Kumar; that chopper, knife and pair of Digitally signed by chappal are already Ex. P1 to Ex. P3. VINEET During the VINEET course of KUMAR KUMAR 16:19:16 +0530 Date: 2024.12.20 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.23/56 examination-in-chief, leading questions were put to the witness by Ld. Addl. PP for the State and in response to the same, PW-15 has admitted that SI Dinesh Kumar also prepared sketch of the chopper; that SI Dinesh Kumar also brought the MLC of injured Mahesh Gupta from the hospital.
During the course of cross-examination on behalf of all the accused persons, PW-15 has deposed that at about 10.30 p.m. he was informed by the SI Dinesh Kumar regarding the receiving of DD no. 112B and they reached at the spot at about 10.40 p.m. on motorcycle of SI Dinesh Kumar; that he does not remember whether IO got registered DD regarding their reaching at the spot and when they reached at the spot 15-20 public persons were already present there; that when they reached at the spot PCR van was already present and public persons were standing at a distance from the chopper, knife etc; that after 10-15 minutes SI Dinesh went to GTB hospital from the spot and IO requested some public persons to join the investigation but none agreed; that no notice was given to those public persons who refused to join the investigation and he does not know the name of public persons who informed them that injured was already shifted to GTB hospital; that he does not remember the time when crime team reached at the spot as well as the number of the persons who were in the crime team ; that he does not remember the time when SI Dinesh returned to the spot from hospital; that no public person were made a witness of seizure of knife and other exhibits lifted from the spot; that he does not remember the time when he went to PS along with rukka as well as the mode of transport used by him Digitally signed VINEET by VINEET for the same, however, he went to PS alone;KUMAR that he remained KUMAR in the Date: 2024.12.20 16:19:24 +0530 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.24/56 PS for about 30-45 minutes and after getting the case FIR registered he came back at the spot; that his departure entry was recorded by duty officer vide recording the DD entry regarding registration of FIR; that he does not remember how many photographers were in the crime team as well as how many photographs were clicked by the photographer, however, IO was carrying his kit with him; that one secret informer also met SI Amit Kumar and he informed that one of the accused was present towards Red Light, Mandoli Road; that complainant Mahesh Gupta also identified accused Subhash and he was apprehended, enquired and arrested vide memos i.e. arrest memo, personal search and disclosure statement i.e. already Ex.PW1/B, Ex.PW16/A and Ex.PW16/B. He has denied to the suggestion that he has not joined the investigation at any point of time and reached behind Red Light, Nand Nagri near Police Station, where complainant Mahesh met them. PW-16 has correctly identified accused Subhash in his examination-in-chief.
During the course of cross-examination on behalf of accused Subhash it was stated that they reached at Red Light Nand Nagri at 6 am and secret informer met them at the Red Light; that public persons were passing through the road when secret informer pointed towards accused Subhash; that complainant came there after they reached there, however, he does not know whether IO called the complainant at the spot or not. He has denied to suggestion that accused had surrendered in the PS or that accused Subhash had not made any disclosure statement or that all the writing work was done at the PS. VINEET by Digitally signed VINEET KUMAR KUMAR 16:19:33 Date: 2024.12.20 +0530 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.25/56 PW-16 was not cross-examined on behalf of accused persons i.e. Aashu and Arjun despite opportunity.
19. PW-17 is SI Amit Kumar. He has deposed that on the intervening night of 03/04.09.2016 at about 1.00 am he along with Ct. Pradeep went to the spot i.e. E-2 Block, Nand Nagri, where they found that blood was lying spilled on the floor in large quantity and came to know that injured was already shifted to hospital; that he prepared rough site plan already Ex.PW15/A and thereupon, they went to GTB hospital, where they found injured Mahesh Kumar under treatment and thereupon they returned back to the police station; that he recorded statement of SI Dinesh and Ct. Pradeep u/s 161 Cr.PC. and thereafter they started search of accused persons; that at about 9.30 am, a secret informer met him who informed him about the presence of accused Aashu near Park, Red Light Dilshad Colony, Delhi and thereupon, he along with Ct. Pushkar and secret informer reached at the red light Dilshad Colony and apprehended accused Aashu from near Park, Red Light Dilshad Colony, Delhi; that he interrogated him and arrested him and his personal search was taken vide memos already Ex.PW13/A and Ex.PW13/B and his disclosure statement already Ex.PW13/C was also got recorded; that he recorded statement of Ct. Pushkar and accused Aashu was got medically examined and thereafter produced before the court; that he obtained one day Police remand of accused Aashu from the concerned court and they tried to search co-accused Subhash and Arjun along with accused Aashu but could not succeed and thereafter he was produced before the court and Digitally signed remanded to J/C; that he deposited the MLC VINEET by VINEET of the injured KUMAR at GTB KUMAR Date: 2024.12.20 ____________________________________________________________________ 16:19:43 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.26/56 hospital for opinion regarding nature of injuries and injured was under treatment on that day i.e 05.09.2016; that he collected crime team report and on 09.09.2016, he received secret information about presence of accused Subhash and thereafter, he along with Ct. Rinku, complainant and secret informer went at Red light Nand Nagri and from there at the instance of complainant accused Subhash was apprehended, interrogated and arrested vide memo already Ex.PW1/B, his personal search already Ex.PW16/A was conducted and disclosure statement already Ex.PW16/B was also recorded; that he recorded statement of Ct. Rinku as well as supplementary statement of complainant and accused Subhash Chand was produced before the court from where he was remanded to judicial custody; that on 24.09.2016, he received secret information regarding presence of accused Arjun at his house and thereupon, he along with HC Sudhir and complainant went to his house No.329, Ambedkar Nagar Basti, from where at the instance of complainant, he apprehended accused Arjun Vedi; that he was interrogated and arrested vide memo already Ex.PW1/C, his personal search already Ex.PW11/A was conducted and his disclosure statement already Ex.PW11/B was recorded; that thereafter, they went to GTB hospital from where blood sample of complainant was also taken by the concerned doctor and handed over to him in sealed pullanda and he took the same in police possession vide seizure memo Ex.PW17/A; that thereafter he recorded statement of HC Sudhir as well as supplementary statement of complainant and he deposited the blood sample in sealed condition with MHC(M); that he also recorded statement of Digitally signed Manoj @ Neetu, Amir S/o Jahangir and Saleem VINEET by VINEET and KUMAR he sent the KUMAR Date: 2024.12.20 ____________________________________________________________________ 16:19:55 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.27/56 exhibits to FSL for examination through Ct. Deepak; that he recorded statement of MHC(M) as well as of Ct. Deepak and obtained result on the MLC of injured; that he recorded statements of other witnesses Gaurav and Jatin Gupta as well as supplementary statement of complainant; that he also collected CDR of mobile phones of complainant and accused Subhash and thereafter, he prepared the chargesheet and filed before the court. All the three accused were correctly identified by the witness during the course of evidence.
During the course of cross-examination on behalf of accused Arjun Vedi, the witness has deposed that complainant was also called in the police station and he came before they made departure entry but he does not remember whether his presence is also mentioned in the said DD or not; that they reached within 15 minutes at the house of accused Arjun Vedi after recording their departure and they went to the house of accused on their private motorcycle; that he does not remember whether they went on their Motorcycle or that of HC Sudhir and they parked the motorcycle at a distance of 30-40 meters away from the house of accused Arjun Vedi; that house of accused Arjun Vedi is situated in a densely populated area and wife and brother of accused Arjun Vedi were also present at that time apart from other family members; that they remained at the house of accused Arjun Vedi for about 10-15 minutes and accused Arjun Vedi was interrogated for about 5-10 minutes at his house; that complainant was with them therefore they did not ask any neighbour to join the investigation at the time of arrest of accused Arjun Vedi. He has denied to the suggestion Digitally signed that complainant did not accompany them VINEET by VINEET to the house KUMAR of the KUMAR Date: 2024.12.20 ____________________________________________________________________ 16:20:07 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.28/56 accused or that accused was called in the police station or that he had done the writing work while sitting in the PS or that present case is a false case or that he did not write any statement of any witness at the house of accused Arjun Vedi or that he recorded false disclosure statement of accused Arjun Vedi.
No cross-examination of said witness was conducted on behalf of accused Subhash.
During the course of cross-examination on behalf of accused Aashu, the witness has deposed that there is no specific name of the park from where accused Aashu was arrested but it was near the red light, Dilshad Colony; that he does not remember whether he had written in the arrest memo the place of arrest of accused Aashu as near park red light; that there was no police beat or traffic police available near red light, Dilshad Colony on the day of arrest of accused Aashu and there were some shops on the opposite side as well as residential area near the spot; that no public witness was asked to join the investigation at the time of arrest of accused Aashu; that he cannot say whether the red light Dilshad Colony is also known as Mrignayani chowk. He has denied to the suggestion that he is not aware about the place of arrest as Mrignayani chowk as accused was not arrested from that place or that no public witness was called to joined the investigation as accused was not arrested from red light Dilshad Colony. He has admitted that he has not placed on record any memo to show that he along with accused Aashu went in search of co-accused persons when he was in police remand; that he was not having photograph of accused Aashu when he received secret Digitally signed VINEET by VINEET information about his presence; that complainant was not present at KUMAR KUMAR 16:20:20 +0530 Date: 2024.12.20 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.29/56 that time. He has denied to the suggestion that the proceedings were conducted only for formalities or that accused Aashu was lifted from his house and not arrested from red light Dilshad Colony or that all the writing work was done in the police station.
20. PW-18 Pawan Singh, Alternate Nodal Officer, Vodafone Idea Ltd has produced the certified copy of customer application form of mobile no. 9891608103 and he has deposed that as per CAF i.e. Ex. PW-18/A Subhash Chand is the subscriber of aforesaid SIM number along with photocopy of voter I. Card; that Sh. Israr Babu, Alternate Nodal Officer had also supplied the CDR of mobile no. 8447590448 along with copy of CAF i.e. Ex. CW-18/B (colly) and ID proof i.e. Ex. CW-18/B (colly) and the said number was subscribed to Mahesh Kumar Gupta; that the attested copy of CDR for 03.09.2016 as Ex. CW18/C, certificate u/s 65-B of Evidence Act as Ex. CW18/D and forwarding letter isssued by Sh. Israr Babu, Alternate Nodal Officer to SI Amit Kumar as Ex. CW18/E; that all memos are bearing the signature of Sh. Israr Babu at point X. The said witness was not cross-examined on behalf of any of the accused persons.
21. PW-19 Ct. Mukesh has deposed that on 03.09.2016, he along with Incharge Crime Team SI Suman Kumar visited on road in front of E-2/481, Gagan Cinema Road, Delhi and he at the instance of IO/SI Dinesh Kumar and Incharge Crime Team took 15 photographs of the spot i.e. Ex. PW-19/A1 to A15 from his digital Digitally signed VINEET by VINEET KUMAR KUMAR Date: 2024.12.20 ____________________________________________________________________ 16:20:31 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.30/56 official camera and he proved the certificate u/s 65-B of Evidence Act as Ex. PW-19/B. During the course of cross-examination on behalf of accused Arjun Vedi, PW-19 has deposed that upon receipt of an information on wireless set from control room at about 10:30 pm, they reached at the spot at about 10:50 pm on our official vehicle, however, he does not remember its registration number; that when they reached at the spot, SI Dinesh Kumar along with other staff met them besides more than 50 public persons; that he took the photographs as per the directions of IO and they remained at the spot for about one and half hour, however, his statement was not recorded by IO.
No cross-examination on behalf of accused Subhash and Aashu was conducted despite opportunity.
22. PW-20 SI Suman Kumar has deposed that on 03.09.2016 at about 10:30 pm, upon receipt of call from control room, he reached at the spot i.e. in front of E-2/481, Gagan Cinema Road, Delhi along with team consisting of SI Shiv Kumar Finger Print Proficient and Ct. Mukesh, photographer; that SI Dinesh Kumar along with staff met them and he inspected the spot and prepared scene of crime report i.e. Ex. PW20/A. None of the accused persons have conducted the cross-examination of said witness despite opportunity.
23. Importantly, accused persons had admitted the following documents vide joint statement u/s 294 Cr.PC recorded Digitally signed VINEET by VINEET on 24.11.2023:
KUMAR KUMAR Date: 2024.12.20 16:20:42 +0530 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.31/56 (1) Final medical opinion regarding nature of injury given by Dr. Dheer Singh Rai, SR Department of Surgery, GTB Hospital on the MLC of patient Mahesh Gupta i.e. PW1, as Ex. A1.
(2) Final medical opinion regarding nature of injury given by Dr. Sunil Kumar, SR Department of Neurosurgery, GTB Hospital on the MLC of patient Mahesh Gupta i.e. PW1, as Ex. A2.
(3) Certificate u/s 65-B of IEA as Ex. PW2/C.
24. As a result of above, the evidence of relevant witnesses was dispensed with. Thereafter, PE was closed.
STATEMENT OF ACCUSED
25. During the course of recording of Statement of accused u/s 313 Cr.PC, all incriminating evidence was put to the accused persons Aashu and Arjun Vedi, in response to which, it has been stated by accused Aashu that he is innocent and has been falsely implicated in the present case and that he is the cousin of accused Subhash i.e real son of his Mausi, who got him employed at Delhi Chicken point which at that point was being run by Mahesh Gupta and Neetu. He has further stated that Complainant did not give him wages for two days and thereafter the said hotel was taken over by accused Subhash and Neetu and he again started working there for wages of Rs.250 per day.
26. During the course of his statement u/s 313 CrPC, Accused Arjun Vedi has stated that he is innocent Digitally and has been signed by VINEET VINEET KUMAR KUMAR Date: 2024.12.20 ____________________________________________________________________ 16:20:51 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.32/56 falsely implicated in the present case. He has further pleaded that he used to visit Delhi Chicken Point which was run by accused Subhash Chand and Neetu and prior to that, said Chicken point was being run by complainant Mahesh Gupta. He has further pleaded that thereafter complainant started the said Delhi Chicken Point with accused Subhash and he used to visit within a week or so. He has further pleaded that he was having cordial relation with accused Subhash Chand and due to that, complainant was feeling jealous from him and therefore he falsely implicated him in the present case.
27. Also, on 24.11.23 separate Supplementary statements of accused persons u/s 313 CrPC were recorded.
DEFENCE EVIDENCE
28. Only Accused Aashu expressed his willingness to lead defence evidence and chose to examine one witness in his evidence. The testimony of said witness is as follows:
29. DW1 is Smt. Dolly. She has deposed that she is the wife of accused Aashu. She has further deposed that on 03.09.2016, her husband was not well and he was sleeping at their house and in the midnight between 12-1 am, 3-4 police officials knocked the gate of their house. She has further deposed that she enquired from them for what purpose they came to their house, but they did not give any answer and took her husband with them. She has further deposed that she also met with SHO of the concerned Digitally signed by VINEET police station but he did not listen to her request. VINEET KUMAR KUMAR Date:
2024.12.20 ____________________________________________________________________ 16:20:59 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.33/56 During the course of cross-examination on behalf of State, said witness has deposed that she did not make any written complaint to senior police officers or any other authority that her husband was lifted from their house during midnight of 03.09.2016. She has denied the suggestion that her husband was arrested on 04.09.2016 at 9:30 am from Red Light, Dilshad Colony, Nand Nagari. She has further denied the suggestion that she did not make any complaint to senior police officers or court as her husband was not arrested from her house on 03.09.2016. He has further denied to the suggestion that she was deposing falsely in order to save her husband. She has admitted that co-accused Subhash is their relative and that on 03.09.2016, her husband was working along with co-accused Subhash at Delhi Chicken Point.
30. Thereafter, Defence Evidence (DE) was closed vide order dated 18.12.2019. At the stage of final arguments, accused Subhash Chand stopped appearing before the court, therefore, he was declared Proclaimed Offender by Ld. Predecessor vide order dated 28.03.2022.
31. I have heard the arguments addressed by Ld. Addl. PP for the State as well as Ld. Defence Counsels representing the accused persons. Ld. Defence counsels have argued that accused persons have been falsely implicated in the present case and there are many discrepancies in the investigation of the present case and in addition to it, there are inconsistencies as well as contradictions galore in the testimony of witnesses inter se. It was further argued Digitally signed that there is no incriminating evidence VINEET by VINEET against the accused KUMAR persons KUMAR Date: 2024.12.20 ____________________________________________________________________ 16:21:10 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.34/56 for the offences under Section 307/34 IPC r/w S. 25/27 Arms Act, therefore, the accused persons be acquitted of the aforesaid charges. Whereas, on the other hand, Ld. Addl. PP for the State has strongly argued that prosecution has been able to prove its case against the accused persons beyond reasonable doubt, thus the present case warrants conviction.
ANALYSIS
32. Now this court will consider if the prosecution has been able to prove its case against the accused persons beyond reasonable doubt in the light of oral testimonies as well as documentary evidence on record. But before proceeding further, it is profitable to get a deeper insight into some concepts as elucidated by the Hon'ble courts, which are integral to adjudication of a criminal case and the same are discussed as under:
BEYOND REASONABLE DOUBT
33. It is settled principle of criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt and the accused has to prove its defence on preponderance of probabilities. What does the expression 'beyond reasonable doubt' mean? The said expression has been defined by the Hon'ble Supreme Court in the various judgments. In the matter of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms: Digitally signed by VINEET VINEET KUMAR KUMAR Date:
2024.12.20 16:21:20 +0530 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.35/56 "11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy.
Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC. 230."
In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR Digitally signed 1957 SC 637, the court observed (Para12): VINEET by VINEET KUMAR KUMAR Date:
2024.12.20 ____________________________________________________________________ 16:21:31 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.36/56 "Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
16. Furthermore, in the judgment of Sucha Singh and Another Vs. State of Punjab, (2003) 7 SCC 643, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape, than punish an innocent.
Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209: 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840:
1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation.
"A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both Digitally signed are public duties." (Per Viscount Simon inKUMAR VINEET byStirland v.
VINEET KUMAR 16:21:40 +0530 Date: 2024.12.20 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.37/56 Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
APPRECIATION OF ORAL EVIDENCE
34. " The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But Digitally signed courts should bear in mind VINEET that it is by only VINEET KUMAR when discrepancies in the evidenceKUMAR of a witness Date: are so 2024.12.20 ____________________________________________________________________ 16:21:47 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.38/56 incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their Digitally signed estimates by guess work on the spur of theby VINEET moment VINEET KUMAR at the time of interrogation. And KUMAR one cannot expect Date: 2024.12.20 16:22:01 +0530 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.39/56 people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness." [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096: (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]"
35. In Balu Sudam Khalde and Anr. Vs State of Maharashtra Criminal Appeal No. 1910 Of 2010, the Hon'ble Supreme Court also dealt with the question as to how the testimony of any injured eye witness is to be appreciated. The relevant Digitally signed observations are reproduced here as under: by VINEET VINEET KUMAR Date:
KUMAR 2024.12.20
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____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.40/56 "26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
36. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed byDigitally them and signed by VINEET VINEET KUMAR KUMAR Date: 2024.12.20 ____________________________________________________________________ 16:22:19 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.41/56 secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
EVALUATION OF ORAL TESTIMONY OF WITNESSES.
37. In view of the aforesaid legal propositions, this court shall now analyze and appreciate the testimonies of complainant/victim along with other witnesses on record. PW-1 Mahesh Gupta /complainant, who had sustained injuries, is the star witness of the prosecution and he has deposed the entire incident in a cogent manner. He has categorically deposed that accused Arjun and Subhash (since P.O.) had borrowed an amount of Rs.3-4 lacs, which was paid in installments in cash. He has further deposed that on 03.09.2016, he received a missed call from accused Subhash and upon calling him back, said accused asked him to take back his money at Delhi Chicken Point. It has been further deposed that Digitally signed when complainant reached near gate of Mandi, he VINEET saw accused by VINEET KUMAR KUMAR persons Ashu and Subhash and he thought Date:
that perhaps they had 2024.12.20 16:22:27 +0530 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.42/56 come to return money. Further, it has been deposed that in the meanwhile accused Arjun also came there and all the accused persons took him to a side where there was dark, while accused Ashu started talking with him, accused Subhash took out one chopper and said accused gave a blow on the head of complainant as well as on his right-side face. Also, it has been deposed that accused Arjun, who was carrying knife with him stabbed him due to which he sustained injuries on his hand, left side face and back and thereafter accused Subhash attempted to give a blow of chopper on complainant's neck and in order to save himself, complainant raised his right hand, due to which, he sustained injuries therein. In addition to this, it is pertinent to mention that during the course of cross-examination, it has been stated by the complainant that while accused Subhash was standing behind him and accused Arjun was on his left side, but he has clarified that accused Ashu had caught hold of him from the front, which clearly indicates that the said accused was also acting in furtherance of the common intention of all the accused persons, as the said accused was the one, who had initially engaged the complainant in a conversation when he was taken into a dark corner on the side of the road, while the other accused persons attacked him thereafter. It has been further deposed that due to the aforesaid assault/attack, complainant fell down and raised an alarm, upon which, some public persons, who were present nearby, started pelting stones at the accused persons after which all three accused persons ran away while throwing their weapons. Importantly, it has also been deposed that complainant's wife was informed about the incident by one public person, when she had called on his mobile and it was Digitally signed ____________________________________________________________________ by VINEET VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.43/56 KUMAR Date:
2024.12.20 16:22:39 +0530 told to her by the public person that the person to whom she had made a call has died, as the public person was presuming the complainant to be dead due to the injuries suffered by him.
38. It is worth mentioning that PW-1/complainant is the victim himself and nothing has come on record to suggest that he would let the real culprits go away unpunished and would falsely implicate the accused persons. Moreover, his version with respect to a money dispute between the accused persons (Subhash and Arjun) and him i.e. motive in the present case, seems to be corroborated by the testimony of PW-5/Mohd. Salim, who has categorically deposed in his examination-in-chief that there was some money dispute between the complainant and accused Subhash as well as Arjun. Further, PW-5 has affirmed the suggestion given by Ld. Addl. PP for the State as correct that complainant used to lend money to accused Subhash and Arjun. Also, the said witness has deposed during his cross-examination that once or twice complainant demanded his money from accused Subhash and Arjun in his presence. Also, PW-5 has affirmed a suggestion given by Ld. Addl. PP for the State as correct that accused Arjun telephonically informed and warned him not to go to market because accused Subhash and Ashu had committed incident with the complainant.
39. In addition to the above, the testimony of PW-1/complainant has been corroborated by PW-3 Manoj Kumar @ Nittu, who during the course of cross-examination by Ld. Addl. PP for the State has admitted a suggestion as correct that he had ____________________________________________________________________ Digitally signed FIR No. 778/16 State vs. Ashu Etc VINEET by VINEET Page No.44/56 KUMAR KUMAR Date: 2024.12.20 16:22:48 +0530 stated to the police that there was some dispute between the parties on the issue of money transaction. Further, he has also stated during his cross-examination that at the time of telephonic conversation with Mahesh, accused Subhash had become angry and took out a chicken cutter, but the said witness snatched and kept the same and thereafter accused persons i.e. Subhash and Ashu went away from there. Further, he has also admitted a suggestion as correct that he came to know that a quarrel had taken place between complainant and accused persons due to which complainant sustained injuries. Importantly, the said witness has also deposed that he had telephonically called the complainant and informed him that he should close his shop and return to his house as there was a possibility of quarrel between him and accused persons. Importantly, nothing has been brought on record to even remotely suggest as to why the said witness would falsely implicate the accused persons.
40. The version of the complainant has been further substantiated by PW-6/Mohd. Amir during the course of his testimony, wherein he has deposed that he along with accused Arjun went towards Subzi Mandi where he saw complainant and accused Subhash talking to each other and in the meantime, accused Ashu also reached at the spot, while the said witness dropped accused Arjun there too. During the course of cross- examination, the said witness has stated that complainant used to demand money from accused Subhash and Arjun. Also, the witness has denied the suggestions given to him on behalf of accused Arjun that there was no money transaction between Digitally signed ____________________________________________________________________ by VINEET FIR No. 778/16 State vs. Ashu Etc VINEET Page No.45/56 KUMAR KUMAR Date:2024.12.20 16:22:56 +0530 complainant and said accused or that accused Arjun was not present at the spot or that said witness has not given lift to accused Arjun on his motor cycle or that he was deposing falsely at the instance of complainant. Pertinently, there is nothing on record to indicate that the said witness was deposing at the behest of complainant or that he has any motive to falsely implicate the accused persons in the present matter.
41. Further, the version of complainant has also been corroborated to a certain extent by PW-7 Gaurav, who is an independent public person, as he has categorically stated during his examination-in-chief that while he was going on foot towards Subzi Mandi side of Nand Nagri, he saw a fighting at Mandi Chowk and when he approached towards the spot, he further saw three persons running while two of them went in the direction from where he was coming and the third one in the gali on his right side. Further, he has deposed that when he reached the place of incident, he saw one person lying on the road in injured condition and he could recognize him as Mahesh (complainant) i.e. uncle of his friend namely Ramesh Kumar Gupta. This witness was not cross examined on behalf of any of the accused persons. Although, PW7 has not identified the accused persons, but it is clear that in a way, he has confirmed the incident which took place involving the complainant.
42. In addition to the above, PW-9 Dr. Mritunjay has stated that he examined injured Mahesh Gupta and prepared the MLC which has been proved by him as Ex.PW-9/A. Perusal of the Digitally signed ____________________________________________________________________ VINEET KUMAR by VINEET FIR No. 778/16 State vs. Ashu Etc KUMARPage No.46/56 Date:
2024.12.20 16:23:04 +0530 said MLC, also corroborates the version of complainant that he was severely injured while he was attacked by the accused persons, as a total number of nine injuries were inflicted by the accused persons upon the complainant as per the said MLC. Further, the version of complainant that he was attacked by accused persons by a chopper and knife, which were dropped at the spot, has been substantiated by reading together the testimonies of PW-4 SI Dinesh Kumar as well as that of PW-12 Saurabh Pathak, Junior Forensic/Chemical Examiner (Biology), FSL, Rohini. It has been deposed by PW-4 SI Dinesh Kumar that he lifted the chopper and knife from the spot, prepared their sketch which are Ex.PW4/B and Ex.PW4/C respectively. Further, he has deposed that MHC(M) produced the chopper and knife during the course of his examination and he identified the said weapons as Ex. P1 & Ex. P2 respectively and also stated that said weapons had blood stains on them. Further, upon sending the aforesaid weapons to the FSL concerned for the purpose of analysis, a report was filed by PW-12 Saurabh Pathak, as per which, the blood stains on the chopper as well as knife were found to be of human origin and the blood on the chopper as well as that of sample taken from the complainant on a gauge cloth piece was found to be of the same group i.e. 'B'. Even though the aforesaid FSL report does not indicate blood of the same group on knife as it gave a 'no reaction', but the said report when seen in totality only goes about to lend credence to the version put forth by the complainant. Also, it is worth mentioning that the accused persons have simply denied all the incriminating evidence put to them without offering any explanation in this regard and moreover none of them have denied the happening of incident with Digitally signed ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc VINEET by VINEET Page No.47/56 KUMAR KUMAR Date: 2024.12.20 16:23:12 +0530 complainant in their statement recorded u/s 313 CrPC nor have put forth any defence in this regard by virtue of any suggestion. Therefore, in view of above discussion, suffice it to state that evidence on record has proved beyond reasonable doubt that accused persons had indeed caused injuries to the complainant in furtherance of their common intention.
43. Now, the only question that remains for the consideration of this court is whether the offences with which accused persons have been charged stand proved or not. Pertinently, charge was framed under section 307/34 IPC against the accused persons herein as well as Accused Subhash (Proclaimed Offender), whereas a charge under sections 25/27 Arms Act was framed against Accused Arjun Vedi and Accused Subhash (Proclaimed Offender). First of all, this court shall proceed to ascertain as to whether Offences under S.25/27 Arms Act have been proved by the prosecution or not. The relevant provisions are reproduced hereinunder:
Section 25 Arms Act
25. Punishment for certain offences.
1[(1) Whoever--
(a) 2[manufactures, obtains, procures], sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm 3[or convert from any category of Digitally signed VINEET by VINEET KUMAR KUMAR Date:
2024.12.20 16:23:21 +0530 ____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.48/56 firearms mentioned in the Arms Rules, 2016 into any other category of firearms] in contravention of section 6; or *****
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than 5[seven years but which may extend to imprisonment for life] and shall also be liable to fine.
[(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than [seven years but which may extend to fourteen years] and shall also be liable to fine. [Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years.] XXXXXXX
27. Punishment for using arms, etc.--(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, 2[shall be punishable with imprisonment for life, or death and shall also be liable to fine.] Digitally signed by VINEET VINEET KUMAR Date:
KUMAR 2024.12.20
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____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.49/56
44. As per requirement of Section 25 Arms Act, weapons should have been found in possession of the accused persons, however, it is worth mentioning that it is not in dispute that weapons in the present case i.e. Chopper and knife were dropped at the spot while the accused persons are stated to have run away from there, which clearly means that the said weapons were not in possession of anyone. Therefore, Section 25 Arms Act is not made out by any stretch of imagination. As far as Section 27 Arms Act is concerned, the said provision pertains to usage of arms in contravention of Section 5 or 7 Arms Act. However, it pertinent to mention that no evidence has been led by the prosecution to even remotely indicate that weapons seized herein fall within the ambit of relevant provisions of Arms Act. Also, no notification issued by the concerned administration in this regard has been proved by the prosecution. Moreover, the said weapons were never put before the complainant during his evidence, thus it may well be said that offence u/s 27 Arms Act is also not made out. Accordingly, charges u/s 25/27 Arms Act remain unproved against Accused Arjun Vedi.
45. Now, this court shall proceed to consider as to whether charge under section 307 IPC has been proved by the prosecution or not. The relevant provision i.e. 307 IPC, reads as under:
"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. VINEET Digitally signed by VINEET KUMAR KUMAR Date:
2024.12.20 ____________________________________________________________________ 16:23:50 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.50/56 Attempt by life convicts: When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.
46. Section 307 IPC provides that if a person does any act with such intention or knowledge, and under such circumstances that if he by that act caused death, he would be guilty of murder. In the matter of State of Maharashtra Vs. Kashirao (2003) 10 SCC 434, the Hon'ble Apex Court has laid down the following ingredients for section 307 IPC:
"The essential ingredients required to be proved in the case of an offence under Section 307 are:
(i) that the death of a human being was attempted;
(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and
(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as : (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or
(b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury."
47. At this stage, it would be beneficial to refer to the judgment of Hanif Usmanbhai Kalva Vs. State of Gujarat, 2015 SCC OnLine, Guj 1324 of Hon'ble Mr. Justice J.B. Pardiwala, as his Lordship was then the Justice of Hon'ble Gujarat High Court.
VINEET VINEET KUMAR
Digitally signed by
KUMAR Date: 2024.12.20
____________________________________________________________________ 16:24:00 +0530 FIR No. 778/16 State vs. Ashu Etc Page No.51/56 His Lordship discussed elaborately about the concept of intention or knowledge for the offence u/s 307 IPC. The relevant observations are reproduced here as under:
"24. Thus, from the above, the most important ingredient to constitute the offence of an attempt to commit murder punishable under section 307 of the Penal Code, 1860 is the intention and knowledge. To attract the provisions of this section, it is necessary for the prosecution to establish that the intention of the accused was one of the three kinds mentioned in section 300 of the Penal Code, 1860. A person commits an offence under section 307, IPC when he has the intention to commit murder, and in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. Section 307 requires that the act must be done with such intention or knowledge or in such circumstances that if death be caused by that act, the offence of murder will emerge.
25. At least one thing is very clear that causing such injury as would endanger life is not an essential condition for the applicability of section 307 of the Penal Code, 1860. Even if the injuries inflicted are simple in nature, that by itself cannot be a ground for acquittal, if the offence otherwise falls under section 307 of the Penal Code, 1860.
26. The word "intent" is derived from the word archery or aim. The "act" attempted to must be with "intention" of killing a man.
27. Intention, which is a state of mind, can never be precisely proved by direct evidence as a fact; it can only be deduced or inferred from other facts which are proved. The intention may be proved by res gestae, by acts or events previous or subsequent to the incident or occurrence, on admission. Intention of a person can't be proved by direct evidence but is to be deduced from the facts and circumstances of a case. There are various relevant circumstances from which the intention can be gathered. Some relevant considerations are the following:
1. The nature of the weapon used.
2. The place where the injuries were inflicted.
3. The nature of the injuries caused.
4. The opportunity available which the accused gets."Digitally signed
____________________________________________________________________ by VINEET VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.52/56 KUMAR Date:
2024.12.20 16:24:10 +0530
48. In view of the aforesaid propositions of law, let us now see that had the death of deceased been caused by the act of accused, whether a case of culpable homicide not amounting to murder or culpable homicide amounting to murder, would have been made out. During the course of testimony of complainant Mahesh Gupta, he has categorically deposed that accused Arjun and Subhash (since P.O.) had borrowed an amount of Rs.3-4 lacs, which was paid in installments in cash. He has further deposed that on 03.09.2016, he received a missed call from accused Subhash and upon calling him back, said accused asked him to take back his money at Delhi Chicken Point. It has been further deposed that when complainant reached near gate of Mandi, he saw accused persons Ashu and Subhash and he thought that perhaps they had come to return money. Further it has been deposed that in the meanwhile accused Arjun also came there and all the accused persons took him to a side where there was dark, while accused Ashu started talking with him, accused took out one chopper and accused Subhash gave a blow on the head of complainant as well as on his right-side face. In addition to this, it has been deposed that accused Arjun, who was carrying knife with him stabbed him due to which he sustained injuries on his hand, left side face and back and thereafter accused Subhash attempted to give a blow of chopper on complainant's neck and in order to save himself, complainant raised his right hand, due to which, he sustained injuries therein. It has been further deposed that due to the aforesaid assault/attack, complainant fell down and raised an Digitally signed by VINEET VINEET KUMAR ____________________________________________________________________ Date:
FIR No. 778/16 State vs. Ashu Etc KUMAR 2024.12.20 Page No.53/56 16:24:19 +0530 alarm, upon which, some public persons, who were present nearby, started pelting stones at the accused persons after which all three accused persons ran away while throwing their weapons. Importantly, it has also been deposed that complainant's wife was informed about the incident by one public person, when she had called on his mobile and it was told to her by the public person that the person to whom she had made a call has died, as the public person was presuming the complainant to be dead due to the injuries suffered by him.
49. It is clear from the above evidence that the brutal attack was an intentional one upon the complainant and it may also be said that the same was executed after proper planning by all the accused persons as complainant was deliberately called to a place by way of a telephonic call. Further, it has also come on record that there existed sufficient motive in the present case as complainant had extended a hefty loan amount to two accused persons i.e. Subhash and Arjun and he was called on the pretext of returning the same to him. Further, it has also come on record that there was some bad blood between the complainant and the accused persons in relation to Delhi Chicken Point. Also, as per evidence on record, the nature of weapons used to execute the attack on the complainant were a meat chopper and a big knife, which were found on the spot and their sketches along with photographs are Ex. PW-4/B, Ex. PW-4/C & Ex. PW-19/A1 to A15 respectively. Perusal of the same clearly reveals that the aforesaid weapons were dangerous in nature and as per the testimony of complainant, accused persons Subhash and Arjun were already carrying them at Digitally signed ____________________________________________________________________ by VINEET VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.54/56 KUMAR Date:
2024.12.20 16:24:27 +0530 the time of incident. Further, as per MLC i.e. Ex.PW-9/A on record, the testimony of complainant/PW-1 is well corroborated as a total of nine injuries were inflicted by the accused persons upon the complainant, that too on vital body parts such as face and head along with other body parts, which seems to indicate that the act was done with intention to causing death. Pertinently, the number of injuries sustained by the complainant and the weapons used for committing the offence clearly points towards the state of mind of the accused persons and their intention thereof to commit murder of complainant, which may well be deduced from the facts and circumstances of the present case. Further, intention of the accused persons to commit the act can be inferred from the fact that it is not as if the accused persons had went back on their own after inflicting one or two injuries, but in the present case, the magnitude of their ill-will could be ascertained from the fact that even after inflicting as many as nine injuries, they had to run away out of compulsion, as stones were being pelted at them by the public persons when the complainant is stated to have raised an alarm. In addition to this, the seriousness of injuries sustained/condition of the complainant at the time of incident can very well be ascertained from the fact that a public person had informed his wife over a telephonic call that complainant had already died. Moreover, the contention on behalf of accused persons that complainant had only sustained simple injury, therefore, Section 307 IPC is not made out, is without any merit as it is settled law that the most important ingredient to constitute an offence u/s 307 IPC is intention and knowledge and an injury that would endanger life is not an essential condition for applicability of said provision. Suffice it to Digitally signed ____________________________________________________________________ by VINEET VINEET KUMAR FIR No. 778/16 State vs. Ashu Etc Page No.55/56 KUMAR Date:
2024.12.20 16:24:41 +0530 state that even if the injuries are simple in nature that cannot be a ground in itself to dilute the aforesaid provision, if otherwise the offence is made out from the facts and circumstances of the case.
50. Thus, it is crystal clear from the foregoing discussion that prosecution has been able to prove the offence u/s 307/34 IPC against the accused persons beyond reasonable doubt. Accordingly, accused Aashu and Arjun Vedi are convicted for the offences u/s 307/34 IPC, whereas accused Arjun Vedi is acquitted for the offence u/s 25/27 A. Act.
51. Let the convicts be heard on the point of sentence.
Digitally signed by VINEET VINEET KUMAR Date: KUMAR 2024.12.20 16:24:53 +0530 Announced in the open (Vineet Kumar) court on 20.12.2024 Addl. Sessions Judge-02 E-court/Shahdara/KKD/Delhi
____________________________________________________________________ FIR No. 778/16 State vs. Ashu Etc Page No.56/56